University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

Tag Archives: international human rights law

Should international views be given greater consideration in the interpretation of the evolving standards of the Eighth Amendment?

The United States has been pressured by the international community for its stance on capital punishment. This pressure has recently been reignited with the state of Arkansas announcing the execution of eight death row inmates in the span of ten days at the end of the month.[1] Although historically many nations exercised capital punishment, the majority of modern day states have either curbed or completely outlawed capital punishment.[2] In the case of S v. Kaywanyane and Another, South Africa’s highest court ruled that, “[e]veryone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional.”[3] Canada, after a five year moratorium, passed the C-84 bill, which abolished the death penalty.[4] As one of the prime leaders in the world for human rights movements, the international community has been puzzled by the United States’ archaic stance on capital punishment. Despite attempts to kick outside influence from our courts, we have seen such international influence creeping in starting as early as Paquete Habana. Even the heated topic of capital punishment has not been immune to international influence.

In Thompson v. Oklahoma[5], the Supreme Court found that the execution of an individual under the age of 16 would be a cruel and unusual punishment under the 8th Amendment’s contemporary standards of decency. The plurality talked about the “evolving standards of decency,” which was stated in Trop v. Dulles as an indicator of a “maturing society.”[6] To reach this evolving standard of decency, the court stated that it “is also consistent with the views expressed by… other nations that share the Anglo-American heritage” and additionally, “by the leading members of the Western European Community.”[7] The court even referred to three human rights treaties that prohibit juvenile capital punishment in the footnotes, specifically: Art. 6(5) of the International Covenant on Civil and Political Rights, Art. 4(5) of the American Convention on Human Rights, and Art. 68 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.[8]

In Roper v. Simmons[9], the Supreme Court concluded that capital punishment for a juvenile is unconstitutional. While the court elaborated that international views “do not dictate the outcome of our Eighth Amendment inquiry” the court mentioned that the international community is “instructive for its interpretation of the Eight Amendment’s prohibition of ‘cruel and unusual punishments.’”[10] The court looked at various statistics in the world to point out that “only seven countries other than the United States have executed juvenile offenders since 1990.”[11]

In Atkins v. Virginia[12], the Supreme Court ruled that imposing the death penalty on mentally handicapped individuals would be a cruel and unusual punishment under the 8th Amendment. Even though the court relied on its conclusion based on only domestic findings, the majority mentioned in a footnote that the internationally community opposes capital punishment for mentally handicapped individuals[13]

To determine what constitutes cruel and unusual under the Eighth Amendment, our courts placed an emphasis on the “evolving standards” in our nation. Although there has been a lot of opposition on the use of international views to determine our constitutional rights, it is not a novel practice to have our courts cite international laws or sources, as shown throughout history. Through transnational seminars and conferences, legal dialogues between our judges and judges from around the world are increasingly common. From the cases observed here, the international views our courts referenced were not contrary to our values. In fact, our courts aligned with foreign views which brings up the idea that there is an international consensus against certain penal practices. Foreign law and international law, are still very persuasive laws.

It is time for the United States to re-examine our capital punishment policies with the international community’s views as a persuasive source. Even though our nation has shifted in the same direction as these abolitionist countries, the United States is in the minority where capital punishment is acceptable. Our nation joins a small group of countries who are regularly seen as one of the biggest human right violators, such as North Korea, Saudi Arabia, Iraq, China, Iran, and Egypt. Our capital punishment policy has been nothing but a failed project on criminal deterrence and its continued use is an international embarrassment. When our officials criticize other nations that have terrible human rights records, those countries deflect our criticisms and point out our archaic retentionist policies.[14]As a result, it would be in our nation’s best interest to re-examine the death penalty, with the international view as a persuasive source, and to persuade the Arkansas governor to halt the execution of these eight individuals, in light of the evolving standards of decency.

Bahrain, its name meaning “two seas,” is a small island nation located on the eastern coastline of Saudi Arabia in the Persian Gulf.[i] Dating back to the time of the Romans, Bahrain was an important trading center.[ii] Centuries later, the Al Khalifa tribe rose to power in 1820 and established a treaty relationship with Great Britain.[iii] Bahrain became an independent state in 1971.[iv] Considered a constitutional monarchy with an elected legislative assembly, Bahrain has been ruled by King Sheikh Hamad bin Isa Al Khalifa since 1999.[v] When he first became Head of State in 1999, King Khalifa released all political prisoners and gave women the right to vote.[vi]Lately, however, the Bahrain government has been accused of major human rights violations and has seen an increase of low level unrest between security forces and protestors.[vii]

On February 21st 2017, Bahrain’s Council of Representatives voted 31-1 on a proposed amendment to Bahrain’s Constitution that would enable military courts to try civilians.[viii] The Council of Representatives is the elected lower house of Bahrain’s National Assembly and is made up of 40 seats.[ix] Next, the proposed amendment will go to the upper house of Parliament,[x] the Consultative Council, which is made up of 40 members that are appointed by King Khalifa.[xi] Article 120 of Bahrain’s Constitution states that proposed amendments to the Constitution require the approval of 2/3 of both chambers of Parliament and approval of King Hamad.[xii] If approved there and by King Khalifa, the amendment is implemented and could have detrimental effects on the Bahraini people.[xiii]

Currently, Article 105(b) of Bahrain’s 2002 Constitution states that “the jurisdiction of military courts shall be confined to military offenses committed by members of the Defense Force, the National Guard, and the Security Forces.”[xiv] If approved, this bill effectively removes limitations on military courts by expanding their jurisdiction to civilians[xv] This change would further empower security forces amid a crackdown on dissent at a level not seen since the 2011 Arab Spring protests.[xvi] Yet, Brig. Gen. Yussef Rashid Flaifel, head of the country’s military courts, said the change is necessary to fight rampant terrorism in the nation.[xvii]The explanatory note on the proposed amendment confirms this intent by citing that the spread of terrorism in the region and the military courts flexibility and speed in investigations and sentencing justifies removing the restriction.[xviii]

Despite the national security concern, activists are outraged over this potential amendment.[xix] “The Bahraini king is effectively creating a police state with this de facto marital law” said Sayed Alwadaei, the director of advocacy at the Bahrain Institute for Rights and Democracy.[xx] The last time military courts prosecuted civilians was in 2011 in state of emergency in Bahrain. During that three-month time frame, the courts convicted approximately 300 people of political crimes in prosecutions designed to punish those in the opposition and to deter political opposition [xxi] Doctors, nurses, and the Bahrain 13 (a group of political leaders and human rights defenders sentenced to between five years and life imprisonment) were among the 300 convicted.[xxii] In June and August 2011, King Hamad transferred these cases to civilian courts, which upheld the results of the convictions, which were based on exercising basic rights of freedom of expression and peaceful assembly.[xxiii]

Furthermore, the Bahrain Independent Commission of Inquiry (“BICI”), an international panel appointed by the King to investigate abuses, determined that the fundamental principles of a fair trial, including prompt and full access to legal counsel and inadmissibility of coerced testimony, were not respected in the courts.[xxiv] This has been an ongoing trend as civilian criminal and military Bahraini courts have been a part of the subpar fair trial standards in the wake of political dissent.

For instance, Bahrain civilian courts have routinely convicted defendant’s purported crimes that involved merely a defendant’s expression of political views.[xxv] To justify sentencing prominent opposition activists to long prison terms, a civilian court found that while unlawful means, such as the use of force, must be employed to qualify an act of terrorism, the force need not necessarily be military because terrorism can be the result of moral pressure.[xxvi] The increase of more speed and flexibility into an already unjust justice system in Bahrain is the wrong direction to go in.[xxvii]

Besides the clear and obvious unfairness, international human rights bodies have determined that trials of civilians before military tribunals violate the right to be tried by a completely independent and impartial tribunal.[xxviii]Civilians should be tried by military courts only under exceptional circumstances and only under conditions that genuinely afford the full due process.[xxix] Leading Bahraini legal experts expressed fear that civilians will be prosecuted and denied fair trials and access to lawyers.[xxx]

This prediction stems from the execution of three torture victims in January 2017 after civilian criminal courts convicted them and sentenced them to death under a broad anti-terror law.[xxxi] Judges dismissed the credible reports of torture and denied defendants access to legal counsel. UN Special Rapporteur on extrajudicial killings investigated and determined that executions were, in fact, extrajudicial.[xxxii] Also in January 2017, the king reinstated the Bahrain National Security Agency’s (“NSA”) power to arrest. NSA is Bahrain’s intelligence service, that was involved in a systematic arbitrary detention and torture in 2011, resulting in death of at least one detainee.[xxxiii] The re-empowerment of the NSA began exercising its renewed power in February 2017 with the arrest of medical professional for providing treatment to a protestor.[xxxiv]

The unconditional support provided by its allies in London and Washington has influenced and increased these dictatorial efforts, which ultimately harms the people of Bahrain.[xxxv] With important allies like United States ignoring such human rights violations and preparing to sell arms without reform conditions, the problem will only worsen without a strong international censure of this move. This is exactly why President Trump’s deal to approve a sale of fighter planes to Bahrain without any conditions is concerning.[xxxvi]Instead of giving aid to countries unconditionally, the United States should be using that leverage to promote basic human rights. It is even more necessary to promote this for allies, such as Bahrain, in order to continue international progress and ensure human rights are respected worldwide.

Elizabeth Hays is a third year law student at the University of Baltimore School of Law. She completed her undergraduate studies at the University of Baltimore, where she majored in Jurisprudence. Her legal interests include administrative law, national security law, and maritime law. Elizabeth has previously interned with the U.S. Army JAG Corps and the U.S. Coast Guard JAG Corps. Additionally, she participated in the winter study abroad program in Curaçao in 2015/16. She is currently the Co-President of University of Baltimore Students for Public Interest (UBSPI) and a Staff Editor for University of Baltimore Law Forum.

[i] Americans for Democracy & Human Rights in Bahrain, Bahrain Institute for Rights and Democracy, European Centre for Democracy and Human Rights, NGOs to Bahrain: Do Not Allow Military Courts to Judge Civilians, Americans for Democracy & Human Rights in Bahrain, Feb. 6, 2017.

On October 9, 2016, the situation escalated, resulting in death. The Harakah Al-Yaqin launched three predawn attacks on three police border posts.[1] One of the posts was the security headquarters; the assault involved several hundred assailants and included planting improvised explosive devices and setting an ambush on the approach road, delaying the arrival of army reinforcements, while the attackers looted the armory.[2] On November 12, 2016, in another encounter, a senior army officer was killed.[3]

The Tatmadew, the Myanmar military, retaliated with a counterinsurgency operation. This operation was disproportionate and failed to distinguish between civilians and combatants.[4] This resulted in about 1,500 buildings being torched in the township of Maungdew, an estimated 65,000 people have fled to Bangladesh as a result.[5] Documentation shows extrajudicial killings, rapes, arbitrary arrests, and beatings by the government security forces.[6] The Tatmadew have also almost entirely sealed off the northern area of Arakan in the Rakhine State.[7] The government has banned the Rohingya from using their boats to fish in order to “prevent insurgents from leaving or entering the country by sea,” leading to many risking their lives on makeshift rafts in order to get food for their families.[8]

These human rights violations by the Tatmadew have not been handled well by the government. The government has admitted that people have been found dead and that those arrested were suspected members of Harakah Al-Yaqin and their supporters.[9] However, the government’s rebuttal to the human rights abuses have been undesirable. The country’s Attorney General’s office have posted “Fake Rape” on its website to discredit reports that the Tatmadew officers have committed rape.[10] Furthermore, the government has denied accredited journalists and human rights investigators access to verify the abuse.[11]The government formed a special investigative committee led by former General Myint Swe (now Vice President of Myanmar) to look into the October violence. Unsurprisingly, the committee quickly dismissed any and all claims of misbehavior by security forces.[12]

However, a few weeks ago the advisory committee created by Aung San Suu Kyi and headed by Kofi Annan met with Rakhine Buddhists and Rohingya residents from two villages.[13] The Secretary of Kaman National Development Party, Tin Hlaing Win, met with the advisory committee to tell the committee about the Rohingyas losing their rights over the last four years and their wish to return home.[14] The committee told Win that that would submit their demands to the government with their recommendations.[15]

Over forty Myanmar-based civil society groups issued a statement asking for an independent investigation by the international community to into the human rights abuses by the Tatmadew.[16]Specifically, these groups requests that an investigation “fully assess the totality of the situation in Rakhine state and provide clear recommendations for the current government to effectively address and prevent further problems in the Rakhine state.”[17] This statement came a day before foreign ministers of the Organization for Islamic Cooperation, an intergovernmental body of 57 member nations, met in Malaysia to discuss the plight of the Rohingya in Rakhine state.[18]

“The Other Side of the Coin: Harakah Al-Yaqin”

Although many Rohingya are peaceful, the October attack was launched by a group of Rohingya that the International Crisis Group has labeled the group as a Muslim insurgency. The group Harakah Al-Yaqin (the Faith Movement) was established after the 2012 riots between Muslims and Buddhists and is currently a group of twenty Rohingya who have experience in modern guerilla warfare and are leading operations in Northern Arakan.[19] A committee of Rohingya emigres based in Mecca oversees Harakah Al-Yaqin.[20] The Harakah Al-Yaqin have obtained fatwas from senior clerics in Saudi Arabia, United Arab Emirates, and Pakistan to enhance its religious legitimacy, backing its cause under Islamic law.[21] The group has spent the last two years training hundreds of local recruits in guerilla warfare and explosives.[22] There are some indications of training and solidarity links with international jihadist organizations, but it is important to distinguish the aims and actions of the Harakah Al-Yaqin – to secure the rights of the Rohingya in Myanmar using insurgency tactics against security forces.[23]

“Momma is Stepping in”

As a result of the escalating violence and the actions of the Myanmar government, the United Nations human rights envoy to Myanmar, Yanghee Lee, went on her biannual 12-day visit in January.[24] Lee had discussed with Aung San Suu Kyi the security situation in the northern Rahkine State, the reports of the abuses by the security forces, and the increasing need for humanitarian assistance for people displaced by fighting between the government army and ethnic guerilla groups in war-torn Shan and Kachin states.[25]

Lee also met with Vice President Myint Swe, chairman of the special investigation committee, to question the investigation methods of the committee.[26] This was due to the interim report issued on January 3 that the rape allegations resulted insufficient evidence to take legal action and the accusations of torture, arson, and illegal arrests were still being investigated.[27] Moreover, Lee did not allow the authorities to join her when she visited villages in Maungdaw township to talk to residents.[28] She also met with Rohingya Muslims in adjacent Buthidaung township and visited the local prison there.[29] Yet, reports indicate she was denied access to certain areas.

Lee is to submit a report to the U.N. Human Rights Commission in March.[30]

“Where Do We Go From Here?”

The situation in Myanmar has left the international community thinking “what now?” Until Yanghee Lee releases her report in March, the advisory committee will continue talks with Rakhine Buddhists and Rohingyas in the Rakhine State. The committee will hopefully foster negotiations between the government and the Rohingya to help them attain such basic rights as citizenship, the right to life, access to government resources, among other rights. Meanwhile, the Rohingya continue to wait and suffer.

Unfortunately, the most complicated part of this situation is the intervention of Islamic countries, which only adds to the tension. These countries do not involve the government of Myanmar government in these conferences. Moreover, neither the UN nor the Myanmar government is addressing such involvement. Yet, the primacy of territorial sovereignty makes interference by other States into Myanmar a precarious situation.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.

The air was tense as the wind softly fluttered a weather-worn flag on top of a pole. A deep thud echoed in the air as a tribal elder slammed the ground with his staff. A quiet echo of “mni wiconi, mni wiconi” (“Water is Life,” in Lakota) accompanied each thud from the elder’s staff.[1] A static crackle came a hundred or so meters from the group. Suddenly a loudspeaker blared, “Please disperse. You are disrupting progress!” The slow chants of “mni wiconi, mni wiconi” progressively grew louder as another cackle from the loudspeaker echoed, “This is your final warning, please disperse!” What was meant to quiet the chants seemed to fuel it even more as the chants of “MNI WICONI, MNI WICONI” made the loudspeaker inaudible to those near the protestors. Then, a bang, accompanied by smoke, filled the air and silence immediately descended on the arid Dakota soil. The tribal elder, fell to the ground in unison with his staff. Shrieks of anger and outrage rang as the protestors ran towards the aid of the tribal elder.

The Dakota Access Pipeline is a 1,170 mile long pipeline that could potentially transport over 570,000 barrels of fracked crude oil daily.[2] It is not uncommon to stumble upon a news report showing footages of rescuers picking up seagulls or sea otters drenched in thick black sludge. Like many oil pipeline projects, the danger of an oil leak isn’t a far-fetched concern. The concern here is that this pipeline, which is less than half a mile upstream from the Standing Rock Sioux Tribe’s drinking water source, has the potential to leak. For many months, Native American protestors occupied land across the Missouri River to show their outrage at the Dakota Access Pipeline. These protestors, who would rather be called “Water protectors”, attempted to stop construction through united tribal gatherings. In order to continue with the construction, North Dakota and six other states sent police officers to arrest and even to attack the “Water Protectors” often leading to disastrous results. Many of those arrested were sent to the Morton County Correctional Center and placed in cramped cages. Some, were even placed in makeshift dog kennels to follow the sudden demand of prisoners. In prison, many of these “water protectors” received food, water, and medical attention in an extremely delayed manner. In an attempt to stop the construction, some of the “Water Protectors” even chained themselves to construction equipment. As a result, officers water boarded these individuals to quell the protests.[3]

Under the United Nations’ Convention against Torture and Other Cruel, Inhuman or Regarding Treatment or Punishment (UN Convention), all of these treatments can fall under Article 1 which states

“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …or for any reason based on discrimination of any kind.”.[4]

Article 1 is even more applicable in the situation at hand since most of these “water protectors” are of Native American descent, a historically discriminated group even before the creation of the United States.

In addition, the construction violates one of the basic rights that a human could have, the right to water. Clean drinking water is an indispensable necessity to sustain life. Although it is common knowledge that drinking oil contaminated water is deadly, not many individuals are aware that drinking even post-treated water that was contaminated by oil is unsafe to drink due to chemical residue.[5] Since the Dakota Access Pipeline spans for more than a thousand miles, it is foreseeable that it will leak at one point or another. The recent Alabama pipe explosion which killed a pipeline worker demonstrates the dangers of oil pipeline projects.[6]In the 29th Session of the United Nations Committee on Economic, Social and Cultural Rights, general comment 15 stated that “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”[7] Although Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that everyone has the right to an adequate standard of living “including adequate food, clothing and housing,”[8] general comment 15 clarified that the use of the word including means that the list was not exhaustive. The Committee stated that within this category, “water clearly falls within the category of essential for securing an adequate standard of living.” “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.”[9] The General Comment also clarified the obligation of states and also international obligations which include: respect the right to water by refraining from interfering directly or indirectly with the enjoyment of the right, protect the right to water by preventing third parties from interfering in any way with enjoyment of the right to water, fulfill the right to water by adopting the necessary measures directed towards the full realization of this right. Although the U.S. signed but did not ratify the ICESCR, the signing of the treaty expresses the willingness to refrain in good faith, from acts that would defeat the purpose of the treaty.

Recently, a UN Group stated that they would investigate the human rights abuses going on in South Dakota.[10] With the election season over, it is time for the United States to take charge and address this situation right away before it plays out as an international embarrassment. Even though the United States is not a party to the Declaration on the rights of indigenous peoples, it should make strides to improve the quality of this historically discriminated group.[11] Sadly, the ill-treatment of Native Americans is not a novel concept in our nation’s history. Countries with terrible record of human rights would often reflect U.S. official’s criticisms of their country human rights violations by pointing out various human rights violations going on in the United States. Some fall in the form of discrimination within our country, the continued use of capital punishment, and now these countries can point to the Dakota Access Pipeline as another. Even though the United States only signed but did not ratify the ICESCR and UN Convention, as a global leader on human rights, the United States has to halt the construction of the Dakota Access Pipeline and stop the terrible treatment of these “water protectors.”

Christian Kim is a 3L at the University of Baltimore School of Law with a concentration in International and Comparative Law. He graduated from the University of Maryland (2012) with a Bachelor of Arts in Criminal Justice. He served as the President of the Asian Pacific American Law Student Association and is currently the Chief of Staff for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights. Before law school, Christian worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal researcher for the U.S. Commission on International Religious Freedom and a law clerk for the Law Office of Hayley Tamburello.

“It would turn back the clock on the progress made globally in relation to LGBTI rights.” The Director for ARC International lamented in response to the opposition for denouncing the UN Human Rights Council’s resolution to monitor and investigate LGBTI rights violations more closely[1]. Although the resolution is not binding, by merely calling upon and encouraging State cooperation[2], the protections it offers cover basic human rights and treatment.

On June 30, 2016 the UN Human Rights Council (UNHRC) adopted the resolution, establishing an independent expert for the protection against violence and discrimination based on sexual orientation and gender identity[3]. The UNHRC recommended the position of an independent expert after reports of widespread violence and deaths in the LGBTI community[4]. It mandates the expert with the responsibilities to assess implementation of international instruments, to raise awareness of discrimination, to work in cooperation with States, to address forms of violence, and to conduct advisory services[5]. Vitit Muntarbhorn was appointed as the independent expert on September 30, 2016[6]. However, the resolution is currently receiving strong opposition with a call for cancellation from a coalition of African states. .

Through a separate resolution to the General Assembly, the African bloc is seeking to suspend and subsequently repeal the independent expert position and the UNHRC’s resolution altogether[7]. Sierra Leone initiated a resolution on behalf of the Group of African States to “defer consideration” of the position[8], to delay monitoring and to suspend activities pursuant to a determination of the legality of the HRC’s resolution[9].

The African States are claiming that the UNHRC’s resolution violates international law. They claim that it delves into matters reserved for domestic jurisdiction, that it gives priority to sexual orientation discrimination while it ignores other types of African discrimination and development[10], and that it lacks universal support[11]. Further, the African Group claims that sexual orientation and gender identity should not be linked to international human rights instruments[12]. Amongst the countries of the African opposition is South Africa, which had also abstained from voting in the UNHRC’s resolution[13].

The opposition’s reaction is not a surprise. However, South Africa’s stance is surprising as it has contributed to and upheld the development of progressive jurisprudence[14]. It is also surprising due to the country’s discrimination struggles, Constitutional guarantees to universal rights, and recent actions regarding protection of LGBTI rights[15]. South Africa abstained from voting during the UNHRC’s resolution because of alleged “unnecessary divisiness”[16]. It currently appears to agree with the African States’ stance that the UNHRC resolution jeopardizes “the entire international human rights framework as [it] create[s] divisions” and that it does not fit within international law[17].

Even recently, the South African Department of Justice has worked to protect LGBTI rights and the Department of Home Affairs was in the center of controversy by refusing entry to a pastor who had made homophobic hate speeches[18]. So, why did South Africa choose to side with the rest of Africa? Initially abstaining from the vote, but then agreeing with the rest of Africa may be the result of strategic appeasement. South African officials have been criticized for aligning with “Western” beliefs and for persuading the rest of Africa in aligning its politics pursuant to such beliefs[19]. Further, South Africa still owes a large debt to certain African countries for aid during the apartheid and trade to the rest of Africa accounts for $20 Billion of Africa’s trade[20].

The claims that sexual orientation and gender identity should not be included in international law mechanisms are unjustified. Orientation and identity are not outside of international law as they are protected in the principles of universality and non-discrimination established in the Universal Declaration of Human Rights and the International Covenant on Civil Political Rights[21][22][23]. Also, the claim that UNHRC’s agenda on sexual orientation and gender identity overlooks issues relating to racism is frivolous. The UNHRC resolution’s purpose is to support a broad agenda, to strengthen mechanisms, and to address issues of racism, discrimination, and related intolerance in any form[24]. Further, claims that the UNHRC resolution violates sovereignty and non-intervention purport a misunderstood role of the appointed expert. The expert is not a decision-making or enforcement body, but instead its purpose is to address issues, raise awareness, engage in dialogue, and to work in cooperation with States for any recommended implementations[25]. Lastly, the unprecedented suspension of the UNHRC resolution would hinder the Council’s institutional architecture and autonomy[26], which would render it “toothless” to future oppositions[27].

If the African bloc’s resolution is put forward for a vote to the General Assembly, South Africa will likely abstain in order to appease Western Countries and to be in accordance with its constitutional guarantees. The backlash from voting against the UNHRC resolution would be too damaging to the State’s reputation and politics as the champion of anti-discrimination following the end of apartheid. It would receive criticism from governments and NGOs alike. South Africa’s stance is most likely a “bluff” in order to appease other African countries until the issue has lost its “steam.”

US officials strongly support the UNHRC resolution and warn that re-opening the resolution to opposition could undermine the council’s ability to function and enforce their mandates. They noted that such review will weaken the Council, as it has never been subject to intervention by the UN General Assembly[28]. Further, a representative from the EU reminded that the States must “protect the human rights of all individuals without distinction of any kind.”[29] The representative emphasized that they have an international obligation to uphold the UNHRC resolution and the opposition lacks legal foundation to oppose it.[30] Amidst Western warnings, the African bloc’s resolution has a good chance of obtaining the necessary 97-vote simple majority to pass,[31] with the support of the African States and almost every State in the Organization of Islamic Cooperation.[32]

The vote on the African States’ resolution in the General Assembly was scheduled for Tuesday, November 8, 2016. However, the UN has delayed talks and voting on canceling the independent expert and amending the UNHRC resolution until later this month, November 2016.[33]

John Rizos is a 3L at the University of Baltimore School of Law with a concentration in International Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, John has served as the Secretary for Phi Alpha Delta Law Fraternity and is currently enrolled in HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the CICL Fellows team that, under the supervision of Professor Moore, assisted in drafting an amicus brief to the Extraordinary Chambers in the Courts of Cambodia, which was later approved and published. John graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

On September 14, 2016, State Counsellor, Aun San Suu Kyi, came to visit the United States hoping to get the rest of the U.S. imposed sanctions lifted. The United States announced that it planned to lift the rest of the sanctions and reinstate trade benefits after a meeting between Suu Kyi and President Obama. In May, President Obama had lifted some sanctions due to the political reforms in Myanmar that began five years ago.[1] This announcement has been seen as another great victory for Myanmar. First, Myanmar has successfully transitioned from a military regime to a democracy. Second, the country’s de facto leader is a 71-year-old, a Nobel Peace Prize winner woman.[2]

The country has really transformed and improving for the better, right!? Well, this isn’t entirely true. Myanmar has a dark horrifying situation that has been going on for decades, serious human rights violations that could amount to crimes against humanity against: the Rohingya.

WHO ARE THE ROHINGYA?

Myanmar has recognized 135 minority groups within its country. However, it refuses to accept its 136th: the Rohingya. The Rohingya, are a Muslim group located in the Rakhine State of Myanmar and make up one third of Rakhine’s population.[3] While, Myanmar is a predominately Buddhist country and the Rakhine State is the poorest and least developed state in Myanmar.The poverty and religious differences are part of the conflict between the Buddhists and the Rohingya. However, the Buddhist population claim that due to the belief that the Rohingya are descendants of Bengali migrants that were used as laborers and later fighters during British Occupation.[4] However, the Rohingya claim they are indigenous to the Rakhine State.[5]

“THE MOST PERSECUTED REFUGEES IN THE WORLD”

Since the 1960s, the Rohingya had to flee to Bangladesh to escape the human rights abuses they suffered at the hands of the army and government. In 1982, the Myanmar government passed a law denying the Rohingya citizenship. The Rohingya have suffered torture, cruel, inhuman, and degrading treatment and punishment, extra-judicial killing and summary execution, arbitrary arrest and detention, rape, destruction on homes, forced labor, forced relocation and eviction, confiscation of land and property.[6] Since the 1980s, many mosques and religious schools have been demolished and repairs to any mosque are often prohibited. Also, Muslim cemeteries, monuments, places and historical sites are often appropriated by the government or destroyed. In the 1990s, the State, Peace, and Development Council policies have been using discriminatory practices aimed at reducing the Rohingya in the Rakhine State.[7] Since 2001, traveling restrictions have been placed on the Rohingya. They are required to have a traveling pass to travel within the townships and outside of the Rakhine State.[8]

In 2012, tension turned into violence. A Rakhine State Buddhist woman was raped and murdered, allegedly by a group of Rohingya men. Buddhists nationalists burned Rohingya homes and killed more than 280 people and tens of thousands of Rohingya were displaced. Currently, more than 120,000 Muslims are being housed in forty internment camps.[9] The Ma Ba Tha, a group of radical Buddhists, have since been on a campaign of ethnic cleansing. They will target anyone offering a different opinion or speaking for non-discrimination, although their attacks and threats are primarily directed against the Rohingya[10]

“NOBODY KNOWS THE TROUBLE I’VE SEEN”

In 2012, 86,000 Rohingya fled to neighboring countries. The Rohingya have been denied resettlement in Indonesia, Thailand, Bangladesh, Malaysia, and Australia.[11]The Rohingya are, essentially, stateless. They are denied basic rights-freedom of movement, access to education and services, employment, property, and healthcare. Since they are not considered citizens of Myanmar, they lack the proper identification documents needed to become a citizen anywhere else. On March 31 2015, all temporary registration cards, the main identification document held by Rohingya expired. In June, the Government announced that those who had submitted their card by the deadline (approximately 469,000 people) were eligible to apply for new identity cards.[12] However, many Rohingya do not trust the government and therefore have not gotten new cards. The only identification some Rohingya have managed to have is a household registration card. The situation became dire between January 2014 and May 2015 when more than 88,000 Rohinya fled to the Bay of Bengal. This resulted in thousands being abandoned and stranded at sea.

Migration

In May 2015, due to international pressures over the migration crisis Bangladesh, Malaysia, Thailand, and Indonesia have been playing a game of Maritime ping pong.[13]

Bangladesh: more than 32,000 Rohingya have been registered refugees and it is believed that more than 200,000 additional unregistered Rohingya refugees are there but the refugee camps are horrific which caused many to flee to the Bay of Bengal.

Malaysia: In June 2016, Malaysia reported 150,700 registered refugees; 90% are Rohingya but have no legal status and therefore unable to work and denied the same rights

Indonesia: the numbers are relatively low and under international pressure admitted 1,000 Rohingya with emergency assistance and protection.

“CHANGE’S A COMING??”

In August, one month before her visit to the United States, Suu Kyi announced the establishment of a nine-person committee, led by former UN Secretary-General Kofi Annan, to provide options and suggestions to the government for resolving the ethnic conflict in the Rakhine State.[14] The final report of the committee is due at the end of August 2017.[15]

While this represents a step forward, there are no Rohingya on the committee and the Rakhine State is one of the most xenophobic areas in the world. This could cause a problem for Mr. Annan as the new Myanmar government has not taken an active role in taking a stance for the Rohingya. In fact, Suu Kyi instructed the new U.S. ambassador not to use the term Rohingya and she herself has never addressed the Rohingya as Rohingya.[16] Furthermore, in the past Suu Kyi stated that “she didn’t know if the Rohingya could be considered citizens” and recently “that everyone who was entitled to citizenship should get it.”[17] However, her feelings are not just targeted at the Rohingya, but have more of an anti-Muslim sentiment, in general.[18] It will be interesting to see if this committee will be effective at all in assessing and resolving the situation.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.

Both the US and South Africa are parties to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which aims to eliminate racial discrimination and promote understanding amongst all races.[i] In fact, both countries have representatives on the Committee on the Elimination of Racial Discrimination, which is tasked with implementing the ICERD and meets twice a year to work on resolving international issues of discrimination. One issue that has emerged recently that could have wider implications for both state parties is hair style enforcement in public schools.

In the last 6 weeks there have been controversies in the US and in South Africa regarding school policies discriminating against hairstyles worn by black students. School administrations came under scrutiny for both blatant and subtle policies that did not accommodate for reasonable ethnic and cultural practices.

In Pretoria, South Africa, the students at the Pretoria High School for Girls (“PHSG”) alleged that school officials were telling them to straighten their hair. This news took Twitter by storm and the hashtag #StopRacismAtPetoriaGirlsHigh nearly broke the Internet. An online petition started, which now has over 32,000 signatures, claims that the school’s code of conduct discriminates against Black and Muslim girls, the students are banned from speaking in African languages (such as Xhosa, Sotho, Zulu and Venda) at school, and students are prohibited from socializing with one another.

On its face, the school’s policy is not blatantly discriminatory. However, it does imply that African hair in its natural state is “messy.[ii]” The school’s code of conduct policy states that cornrows and braids were allowed be only a maximum of 10 millimeter in diameter, go straight back, and have no beads or decorations. Hairstyles should be conservative and neat and students should refrain from any kind of eccentric fashion styles. However, what constitutes eccentric? What constitutes a style that is fashionable?

Looking closely at the language in the school’s policy, many popular styles that black teenager girls would wear would be deemed inappropriate under the policy. Typically black teenagers, in both the US and South Africa wear extensions, beads, Afros or even patterned cornrows in their hair. Under the policy, all of those hairstyles are prohibited.

As a result of international media attention to these issues, PHSG stated that they plan on revising the Code of Conduct and would look for input from all of the students, regardless of ethnicity, and their parents.[iii] PHSG also reported that they needed to “end all hostilities” and resume classes as normal.

This situation isn’t too far removed from instances in the United States. This past July, Butler Traditional High School in Louisville, Kentucky decided “dreadlocks, braids, twists, and “cornrolls” (they likely meant cornrows) are “extreme and distracting and not allowed to be worn by any of its students.[iv] Essentially, the school banned hairstyles primarily worn by the school’s black population. This wording went unchallenged until the sole black female in the Kentucky State House took to Twitter to display her disgust and disappointment.

A month later, the school suspended the policy and updated it to better reflect its student population. However, the original policy and the outrage it caused gained little to no media coverage. In fact, most of the time when black students in the US face discrimination in schools, there is no international media coverage.[v]

The blatant ban against black hairstyles in Kentucky and the implied ban against black hairstyles in South Africa are similar. Yet, why does the incident in South Africa receive significantly more coverage and press? News outlets such as NPR, CNN and the Washington Post all covered the issue. But, the incident in Kentucky was covered only by local newspapers and Essence Magazine.

Why is this a bigger deal in South Africa? Perhaps it is that the US is seen worldwide as a melting pot where all racial groups are treated equally. South Africa is still a fairly new democracy, with apartheid ending less than 25 years ago. It may also be that in South Africa, black Africans make up 76% of the population versus, in America, blacks make up a mere 12.3% of the population.[vi]

When the Committee on the Elimination of Racial Discrimination meets again in May 2017, it will be interesting to see if the banning of black hairstyles is discussed. Considering that the U.S. Court of Appeals recently ruled that it is legal for businesses to discriminate against employees with dreadlocks, the world should be paying attention to the work of the Committee next year and any potentially impacts this judicial decision could have.[vii] If this issue is not resolved across the globe, black hair will continue to be seen as unruly, untamed and naturally untidy, instead of as BEAUTIFUL.

J. Michal Forbes is a proud native of Prince George’s County, Maryland, Ms. Forbes has a fiery passion for international law, travel and frozen yogurt. After receiving her B.A. in Political Science from the University of Maryland, Baltimore she taught ESOL in the Washington, D.C. Metropolitan area before joining the US Peace Corps in 2011. Ms. Forbes served in the Peace Corps in Ukraine from 2011 to 2013, in a small town between the Red Sea and the Black Sea in Crimea. Fluent in Russian, Ms. Forbes soon caught the travel bug and traveled/worked extensively throughout Eastern Europe during her 27 month commitment. Currently a 3L, Ms. Forbes is a member of the International Law Society, Immigration Law Society, Black Law Student Association and the Women Lawyers as Leaders Initiative. She has worked for Maryland Legal Aid and the NAACP’s Office of the Attorney General. She was recently awarded the honor of being named Article Editor with the University of Baltimore Law Forum, a scholarly legal journal focused on rising issues in Maryland. It is her dream to work for the U.S. government assisting with asylum seekers and refugee.

In her free time, Ms. Forbes enjoys eating frozen yogurt with her husband and learning Arabic.

[i]Parties to the International Convention on the Elimination of All Forms of Racial Discrimination“. United Nations Treaty Collection.